On December 17, 2014, NELA joined the National Whistleblowers Legal Defense and Education Fund, Truckers Justice Center and Teamsters for a Democratic Union to file an amicus brief in support of Complainant Robert Powers in the case of Powers v. Union Pacific RR Co., Case No. 13-034, pending before the Administrative Review Board (ARB) of the U.S. Department of Labor. The ARB is reviewing this appeal en banc and invited submission of amicus briefs from interested entities. This case presents the pure legal issue of whether the majority opinion in an earlier case before the ARB, Fordham v. Fannie Mae, articulated the correct contributing factor causation standard for retaliation claims brought under certain whistleblower statutes. See Fordham v. Fannie Mae, ARB Case No. 12-061, ALJ Case No. 2010-SOX-051 (October 9, 2014).
The amicus brief argued that the Fordham opinion faithfully follows the plain language of the statute, the legislative history behind it, and the treatment that the ARB and federal courts have given to the family of AIR 21 retaliation statutes, which protect employees of air carriers (including contractors and subcontractors) who report violations. Proof of retaliation under AIR21 is different from that under Title VII’s burden-shifting scheme established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The AIR 21 independent burden-shifting framework is much more protective of complainant-employees and much easier to satisfy than the Title VII standard. The Fordham decision clarifies the obligations that the AIR 21 framework imposes on each of the parties.
Further, Fordham articulates that when Congress allows a respondent-employer to avoid liability by making a clear and convincing showing that it had legitimate, non-retaliatory reasons for taking an adverse action against a complainant-employee (who has already shown that the employer violated the law by impermissibly retaliating against her), then evidence of the employer’s affirmative defense should not be held to the lower, preponderance of the evidence standard. This is an important clarification for parties litigating either side of a retaliation claim under AIR 21. Fordham does not bar the respondent from offering any evidence to rebut the complainant’s initial case; it merely underscores that the respondent’s evidence must be limited to that which undercuts the complainant’s contributing factor showings. The ARB clarified that Title VII and AIR 21 require different showings by the parties, and different analyses by ALJs and the ARB, which should be embraced by the full Board.
NELA member Jason Zuckerman, Zuckerman Law, Washington D.C., authored the amicus brief